Stone v. Smith
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 DUSTY STONE, 3 Plaintiff-Appellant, 4 v. NO. 32,583 5 ROBIN H. SMITH and 6 ALETA SMITH, 7 Defendants-Appellees. 8 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 9 Albert J. Mitchell, District Judge 10 Dusty Stone 11 San Jon, NM 12 Pro Se Appellant 13 Donald C. Schutte 14 Tucumcari, NM 15 for Appellees 16 17 VANZI, Judge. MEMORANDUM OPINION 1 Plaintiff seeks to appeal from an order awarding summary judgment to 2 Defendants. We issued a notice of proposed summary disposition, proposing to 3 dismiss on the ground that the district court s order is not final. Plaintiff has filed a 4 memorandum in opposition, which we have duly considered. Because we remain 5 unpersuaded that this matter is properly before us, we dismiss the appeal. 6 As we observed in the notice of proposed summary disposition, the right to 7 appeal is generally restricted to final judgments and decisions. See NMSA 1978, § 8 39-3-2 (1966); Kelly Inn No. 102 v. Kapnison, 113 N.M. 231, 235-36, 824 P.2d 1033, 9 1037-38 (1992). Insofar as Defendants counterclaims remain unresolved, the order 10 from which appeal has been taken is not final. See Watson v. Blakely, 106 N.M. 687, 11 691, 748 P.2d 984, 988 (Ct. App. 1987) ( An order disposing of the issues contained 12 in the complaint but not the counterclaim is not a final judgment. ), overruled on 13 other grounds by Kelly Inn, 113 N.M. at 239, 824 P.2d at 1041; and see, e.g., 14 Healthsource, Inc. v. X-Ray Assocs. of N.M., 2005-NMCA-097, ¶¶ 11-15, 138 N.M. 15 70, 116 P.3d 861 (observing that appeal may only be taken if all issues have been 16 resolved by the order under consideration; where counterclaims remain, immediate 17 appeal is generally unavailable). 18 In his memorandum in opposition, we understand Plaintiff to argue that the 19 district court s order should be regarded as final because it contains an award of 2 1 summary judgment. [MIO 1-3] However, not all awards of summary judgment are 2 final. In a case such as this, where an award of summary judgment resolves all claims 3 associated with the complaint but leaves one or more counterclaims unresolved, the 4 judgment cannot be regarded as final. See, e.g., City of Albuquerque v. Jackson, 101 5 N.M. 457, 458-59, 684 P.2d 543, 544-45 (Ct. App. 1984) (holding that although an 6 award of summary judgment disposed of all issues in connection with the original 7 complaint, insofar as it left a counterclaim unresolved, it was not a final judgment). 8 We perceive no basis for departing from the numerous previously-cited 9 authorities, which clearly reflect that the underlying decision is not directly appealable 10 as a matter of right. Accordingly, for the reasons stated above and in the notice of 11 proposed summary disposition, we conclude that the district court s order is not 12 immediately reviewable. The appeal is therefore summarily dismissed. 13 IT IS SO ORDERED. 14 15 __________________________________ LINDA M. VANZI, Judge 16 WE CONCUR: 17 _________________________________ 18 M. MONICA ZAMORA, Judge 3 1 _________________________________ 2 J. MILES HANISEE, Judge 4
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